¶1This is an application for re-hearing.
¶2Counsel for plaintiff in error urges a rehearing chiefly upon two points, first that $100 had been paid on the purchase price and, second, that the first tender under the contract should have been made by the vendor..
¶3In respect to the payment of $100 we think that alone would not relieve against the tender required on behalf of plaintiff as a basis for an action of specific performance. We are of the opinion that the contract contemplated mutual and reciprocal duties in its performance. The plaintiff, being the party who seeks equitable relief, must aver and prove, that he himself was ready, able and willing to perform and that he had tendered actual performance. Brewing Co. v. Maxwell, 76 OS. 34.
¶4Application denied.